FCC REGULATION OF BROADCAST INDECENCY

By Julie M. Bernstein

The regulation of indecent language on the airwaves is a fairly recent
phenomenon. Although the Federal Communications Commission (hereafter
referred to as "FCC" or "Commission") has possessed the power to
restrict indecent and obscene broadcast material since the passage of
the Communications Act of 1934, little activity was generated in this
area until the 1960's. Since then, the FCC and the courts have
wrestled with many issues pertaining to broadcast regulation. Three
major, recurring themes are: the distinction between indecency and
obscenity; the question of the uniqueness of the characteristics of
broadcast media, as opposed to print media; and the government's
interest in protecting minors from indecent language.

This report will focus on regulation of radio communications because
most of the indecency legislation has arisen from that medium. Public
(non-cable) television, while getting its share of complaints about
excessive violence and indecent programming, is more immune to legal
difficulties in this area because there simply isn't currently a great
deal of objectionable language uttered on television. Public
television broadcasters have to cater to more general audiences than
radio broadcasters, and thus must maintain a level of morality that is
acceptable to more sensitive tastes in order to stay alive in the
ratings game. Although the added visual element affords even more
possibilities for offending the public with shows of indecency,
controversies over issues such as nudity and the depiction of sexual
situations have mostly concerned cable transmissions, which are outside
the scope of this report.

The FCC is an independent federal regulatory agency, established by the
Federal Communications Act of 1934. This Act charges the FCC with
insuring that broadcasting serve the "public convenience, interest, or
necessity," a policy duplicated from the Federal Radio Act of 1927, the
predecessor to the Federal Communications Act.1 The FCC has the authority to develop
specific rules and regulations for the administration of the Act, and
the agency's decisions carry the force of law.2 The enforcement powers of the FCC
include giving reprimands, warnings, or fines to stations, renewing
licenses for shorter than usual terms, or, in more extreme cases,
revoking or not renewing a license.3
Stations have the right to appeal FCC rulings to the judicial system.

The FCC's power to regulate indecent language comes from the U.S.
Criminal Code, Title 18, Section 1464 (henceforth referred to as 18
U.S.C. 1464). The statute was originally in Section 503(b) of the
Communications Act and was moved to the Criminal Code in 1948. The
text is the following:

Whoever utters any obscene, indecent, or profane language by means of
radio communication shall be fined not more than $10,000 or imprisoned
not more than two years, or both.

As this statute prohibits both obscene and indecent language, it may
encompass a wide variety of programming. The efforts of the FCC, the
courts, and broadcasting licensees to determine the scope of this
statute's authority will be explored through a case-by-case analysis.

In re WDKD, Palmetto Broadcasting Co.
33 FCC 265 December 1961

Charlie Walker, a popular radio personality in Kingstree, South
Carolina, fell under FCC investigation for broadcasting material that
"was allegedly coarse, vulgar, suggestive, and susceptible of indecent
double meaning."4 Walker was a disk
jockey and announcer on a number of programs, during which he often
told "raunchy" stories and invented new names for local towns, such as
"Greasy Thrill" for Greeleyville and "Monkey's Corner's" for Monk's
Corners. He was also accused of saying "let it all hang out" on
several occasions.5 The FCC found
this material to be "obscene and indecent on its face"6 and thus in violation of 18 U.S.C.
1464.

Station manager E.G. Robinson claimed that the material wasn't obscene
under the Roth v. U.S. (354 U.S. 476, 1957) test, which states that
expression is obscene if, in part, the average person applying
contemporary community standards finds the dominant theme of the
material to appeal to prurient interest. The FCC replied by saying
that the material could be found obscene under Roth, because of the
"common vein of thinly veiled references to the procreatory or
excretory functions of man or beast" that the average man in the local
community would find highly objectionable.7 However, the FCC cautioned
that Roth was not the appropriate test of obscenity in this case, for
several reasons.

The Commission maintained that Roth specifically dealt with the mailing
of obscene material, and that the Supreme Court did not intend the
ruling to have a universal application.8 As they claim in most
upcoming cases concerning indecent language, the FCC finds that the
broadcast media are unique. Radio and television are uniquely
accessible to all, "at the flick of a switch to young and old alike, to
the sensitive and the indifferent, to the sophisticated and the
credulous."9 The Commission therefore sees a duty to protect "those of
highly developed sensibilities"10 from the shock of being exposed to
offensive language. The material concerned in Roth was not so
pervasive and easily available, for the physical characteristics of the
print media make it easier to restrict.

The FCC next adopted a disturbing stance regarding the broadcast of
works which may have serious merit. They claimed that the very nature
of the broadcast media separates radio and television programming from
printed matter. Therefore, even works such as Ulysses or Lady
Chatterly's Lover which would not be found obscene under Roth, would be
questionable if the "more lurid details" were dramatized and aired on
television.11 This observation does not seem particularly applicable
to the radio medium, however. The Commission stated that context
should not always determine whether a work is obscene, for "brief
injections of erotica, pornography, or smut are enough to seriously
prejudice, if not destroy, the general utility of radio and
television."12 In the Walker case, the FCC found that the
objectionable material was hardly isolated, but broadcast repeatedly
over a period of several years. Therefore, the FCC refused to renew
the license of the offending station.

It should be noted that this particular FCC case was decided over a
decade before the Supreme Court decision in Miller v. California (413
U.S. 15, 1973), which changed the Roth test by adding the stipulation
that challenged works must be examined to determine whether they have
any serious literary, artistic, political, or scientific value (the
"SLAPS" test). Even after the Miller decision, however, the FCC
continued to label some material indecent even if it possessed such
merit. It would appear that the justification for the Commission's
action would be that Miller specifically concerns obscene language,
whereas 18 U.S.C. 1464 also bars indecent language, which apparently
need not be subject to the Miller criteria. However, the FCC has
failed to draw up safeguards similar to those in Miller to protect
language that has merit but may be offensive to some.

In re Pacifica Foundation
36 FCC 147 January 1964

In the first of a rather lengthy series of cases involving radio
stations licensed by the Pacifica Foundation, the FCC responded to
complaints about several programs that aired on Pacifica-licensed
stations in 1959 and 1963. These programs included a broadcast of
The Zoo Story, a play by Edward Albee; a discussion of
homosexual attitudes and problems; and readings of original works by
several poets and authors.13 The
complainants charged that these programs were offensive or "filthy" in
nature.

In contrast to most of its later rulings, the FCC disagreed with the
charges of indecency, deciding that most of the broadcasts served the
needs and interests of the listening public. The Commission showed
peculiar deference to Pacifica in this instance by accepting without
argument the licensee's judgment that the material was appropriate for
its listening audience.14 Here, the
FCC appears to define indecency primarily by the contemporary standards
of the local community, although this definition of "community
standards" will be broadened in later decisions. The two cases in
which more offensive material was aired were forgiven as "two isolated
errors," which the stations themselves admitted to, that should not
require so serious a penalty as the revocation of a license.15

The FCC also expressed appreciation that the programming was broadcast
after 10 p.m., when children were less likely to be in the audience.
The relegation of adult-oriented broadcasts to the late hours to
protect children is a major concern of the FCC. Ten p.m. was seen to
be a reasonable time to begin allowing the broadcast of indecent
material until the late 1980s, as will be seen later in this report.

The Commission took no action against the Palmetto stations for the
broadcasts in question. They recognized that provocative programming
may offend some listeners, but noted that these listeners did not have
the unequivocal right to censor such broadcasts.

In re WUHY-FM, Eastern Educational Radio
24 FCC 2d 408 April 1970

At 10 p.m. on January 4, 1970, WUHY-FM of Philadelphia, PA, broadcast
an interview with Jerry Garcia, a member of the rock group The Grateful
Dead. Garcia was interviewed on the weekly program Cycle II, an
underground-oriented show concerning avant-garde artistic expression.
Garcia spoke on such topics as ecology, music, philosophy and
interpersonal relations, and frequently interspersed his comments with
the words "shit" and "fuck"; representative expressions included: "Shit
man," "All that shit," "Every fuckin' year," etc. (The FCC chose to
represent the words as "s--t" and "f--k" in their report.)

The FCC had been monitoring the broadcast of the Cycle II program
following several complaints concerning the material aired on this
station during the 10 p.m. time slot. Therefore, even though this
particular broadcast received no complaints, the FCC reviewed its
contents. In April, 1970, the Commission found that the speech used by
Garcia "has no redeeming social value, and is patently offensive by
contemporary community standards,"16
and was therefore indecent and in violation of 18 U.S.C. 1464.

The FCC determined that they had the authority to prevent the future
broadcast of such expletives to protect the public interest. They
noted that the widespread use of such language on the radio would
"undermine the usefulness of radio to millions" of people, because
listeners would never know whether or not they or their children would
hear "vile expressions" whenever they tuned in to a station. The FCC
claimed that these listeners would severely curtail their radio usage
because of the possibility of hearing such expressions.17

The above rationale for regulation is rooted in the argument that radio
is a distinctive medium which is uniquely pervasive and particularly
accessible to children. While such media as books and magazines can be
shelved in protected areas or otherwise held off-limits to unintended
audiences (such as children), radio has no such available safeguards.
Anyone can tune in at any time during the day, and supposedly be
assaulted by a volley of objectionable words.

The FCC argument holds that if Garcia can preface his statements with
"shit" or "fuck," then nothing is stopping any radio announcer or DJ
from doing the same, and no listener will be safe from this language.
However, their contention that it is a real possibility that news
announcers would routinely insert the phrase "mother-fucking" into
their broadcasts without prohibitory regulation is untenable. Radio
stations must be sensitive to the needs and wants of their audience
members to stay alive in the ratings game, and shows that frequently
used expletives in unnecessary settings, such as news broadcasts, would
likely lose listenership. The market, not the FCC, should decide which
shows to patronize based on the audience's assessment of the
appropriateness of the language used. It is ironic that the FCC could
claim that this language was "patently offensive by contemporary
community standards" without having received any complaints about the
broadcast in question.

The FCC also decided that the words had "no redeeming social value"
because they were solely gratuitous expressions which could have been
replaced with other words "without stifling in the slightest any
thought which the person wishes to convey."18 This is analogous to telling Paul
Cohen that he should have written the words "Avoid the Draft" rather
than "Fuck the Draft" on his jacket. As Justice Harlan pointed out in
Cohen v. California (403 U.S. 15, 1971), "much linguistic
expression serves a dual communicative function.... words are often
chosen as much for their emotive as their cognitive force."19 Whether or not Garcia could have
sanitized his speech and still conveyed the same essential message is a
subjective call, but one that the FCC should not make indiscriminately.

The FCC decision was indiscriminate in its approach because it ignored
the context of the program. While the issues discussed by Garcia were
clearly not indecent, the FCC refused to take this fact into account
because they felt that the threat to the public interest upon hearing
such gratuitous language was too great. This view continued to frame
indecency in terms of the public interest standard enunciated in the
Pacifica decision above, though the composition of the local audience
did not seem to be a factor in this case. Whether or not the topics of
discussions had any redeeming social value, the incidental expressions
that peppered the interview apparently negated any worth that may have
been found. The FCC therefore fined the station $100.

Station WGLD-FM in Oak Park, IL, licensed by Sonderling Broadcasting
Corporation, aired a call-in talk show entitled Femme Forum. This
program followed a "topless radio" format, popular in the 1970s, in
which listeners called in and participated in the discussion of mainly
sexual subjects. On February 21 and 23, 1973, the programs dealt with
oral sex, the latter show featuring explicit descriptions of oral sex
experiences. The FCC discovered these programs as part of an inquiry,
in response to increasing complaints from listeners, into "alleged
broadcasts and cablecasts of obscene, indecent or profane material by
licensees, permittees or cable systems."20

The FCC recognized the station's right to present material that may be
provocative or offensive to some listeners. They said that sex was not
a forbidden subject on the airwaves; however, the interviewer in this
case "could readily moderate his handling of the subject matter so as
to conform to the basic statutory standards."21

As in the WUHY-FM case, the Commission found that the material aired had
no redeeming social value. They decried the "titillating, pandering
exploitation of sexual materials" on this program and on topless radio
shows in general, which were not geared towards a serious discussion of
sexual matters, but towards gaining large audiences.22

According to the Commission, this material not only violated 18 U.S.C.
1464 because it was indecent, but could have been classified as legally
obscene as well. The Supreme Court, in Roth, defined obscenity as
"Whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals
to the prurient interest."23 The FCC felt that the titillating and
pandering nature of the Femme Forum program indicated that it was
intended to appeal to prurient interests. The Roth test of obscenity
cited above had since been modified by Miller, but the stipulation that
the material must appeal to prurient interest remained the same. The
added stipulation that material lacking serious merit could be
prohibited (rather than prohibiting only material that utterly lacked
social value) is irrelevant, for the FCC felt the program in question
had no merit whatsoever, and would thus be obscene under either test.

In justifying the restriction of such indecent material, the Commission
again relied on the theory of the unique nature of radio, "A medium
designed to be received and sampled by millions... without regard to
age, background or degree of sophistication."24 Thus, the FCC again found it
necessary to impose paternalistic safeguards against the possibility
that unwitting listeners would overhear objectionable language.
Sonderling was fined $2000 for the violation of 18 U.S.C. 1464.

Sonderling did not appeal the fine levied by the FCC; although the
Corporation disagreed with the Commission's ruling, they decided to pay
the fine to avoid the high court costs associated with an appeal. All
organizations reviewed by the FCC may appeal any decisions to the court
system, and the Commission had in fact encouraged judicial
consideration in the WGLD-FM case, considering the sensitivity of the
subject matter. However, as in this case, the costs involved often
dampen the initiative of a station intending to take the judicial
route.

Despite Sonderling's decision to pay the fine, a citizens' group and a
civil liberties group challenged the ruling and petitioned for
reconsideration of the notice of apparent liability that the FCC had
served Sonderling. The petitioners alleged that the decision
unconstitutionally deprived the Chicago-area audience of listening
alternatives.25

The D.C. Circuit Court of Appeals agreed with the FCC's assessment that
the material on Femme Forum was presented in a titillating and
pandering manner for the sole purpose of commercial exploitation. This
"pandering" was impermissible under the rationale of Ginzburg v.
United States (383 U.S. 463, 1966), which sustained the conviction
of a publisher who employed suggestive advertising to appeal to the
erotic interest of his customers and promote the sale of his
publications.26 It is interesting
that the D.C. Court chose to apply a ruling from a case involving
mailings to a case involving radio transmissions, especially in light
of the great effort, by both the FCC and the courts, to distinguish
radio from other media in terms of accessibility and pervasiveness.
This holding is also particularly ironic since the Commission's
disowned the Roth rationale in Palmetto specifically because
Roth dealt with mailings rather than broadcasting. Nevertheless,
the D.C. Court here held that the Ginzburg ruling was applicable
because of the commercial interests involved in both cases.

The D.C. Court also noted that the programs were broadcast between the
hours of 10 a.m. and 3 p.m., times when children may have been in the
radio audience.27 In all of the
cases involving broadcast regulations where the issue of when children
are in the audience arises, as it inevitably does, new justifications
are constantly manufactured for further curtailing the hours during
which indecent material may be aired. While in most of the cases it is
taken for granted that daytime hours (broadly, before 6 p.m.) are
off-limits for indecent broadcast because of the heightened risk of
young listeners, the Sonderling case is one of the few that actually
addresses the daytime audience composition, and it does so quite
poorly. The D.C. Court stated that children may be in the audience
between 10 a.m. and 3 p.m. because they may, for example, be home for
lunch or home ill from school.28
Certainly a much better case could be made for restricting indecent
programming after school hours, when the average school-age child would
be home, rather than focusing the case on the few exceptions that may
be present during daytime hours. To sanitize the airwaves to the point
where no child could possibly be in the audience would result in the
imposition of a twenty-four hour ban. (Eventually, such a ban was, in
fact, imposed, and this development will be treated later in this
report.)

The D.C. Court addressed the FCC's finding of the contested material
obscene under the standards of Roth and Memoirs v.
Massachusetts (383 U.S. 413, 1966) The D.C. Court noted, as
mentioned above, that the Miller standard replaced the above
tests, rejecting the rule that material must be "utterly without
redeeming social value" to be considered obscene. However, the
Miller standard also stated that obscene material must "depict
or describe patently offensive 'hardcore' sexual conduct specifically
defined by the regulating state law."29 The Sonderling Court determined that
the material broadcast on Femme Forum was not utterly lacking in
redeeming social value, and was thus not obscene under the Roth
and Memoirs standards applied by the FCC.30 Nonetheless, the D.C. Court chose to
apply the Miller standard, under which the broadcast could still
be found obscene, as it made "no literary, artistic, political, or
scientific contribution."31
Additionally, even under the Memoirs test, Sonderling was still
guilty of appealing to the prurient interest.32

The D.C. Court also rejected the argument that the broadcast should have
been considered as a whole, since the FCC's determination was based
only on brief outtakes containing offensive material. According to the
D.C. Court, radio broadcasting is episodic in nature; an audience
member could tune in or out at any time, only listening to brief
portions of the program.33 This
approach, yet another attempt to distinguish broadcasting from other
media, ignores the fact that a magazine or book could be similarly
handled if the reader focused only on sections that caught the
attention. The history of censorship is rife with examples of books
being banned for isolated instances of objectionable material, without
reference to the work as a whole. Nonetheless, the D.C. Court here,
again relying on the Ginzburg rationale, held that "the pervasive
pandering approach here makes the broadcast pornographic even though
some of its elements may be unoffensive."34 The D.C. Court therefore affirmed
the FCC's ruling.

FCC v. Pacifica Foundation
438 U.S. 726 1978

The conflict over the role of the FCC in broadcast regulation of
indecency finally reached the Supreme Court in 1978. The controversy
began with the October, 1973 broadcast of a monologue by George Carlin
on the Pacifica-owned station WBAI-FM in New York City. The monologue
was aired during a program discussing current attitudes about language,
and the topic of Carlin's recording - ironically - was seven words that
you could not say on the public airwaves. Carlin repeated the words -
shit, piss, fuck, cunt, cocksucker, motherfucker and tits - over and
over again throughout the monologue, poking fun at verbal taboos in
society.

A concerned listener heard the program while driving with his young son
one afternoon, and he complained to the FCC. Despite the fact that
this was the only complaint received about the broadcast, the FCC
warned the station not to air such material again. Although they
issued no fines or criminal charges, the letter of warning would become
a part of the station's permanent file - a potentially important
consideration when license renewal time came around.

The station appealed the decision. The D.C. Circuit Court agreed with
the station's position and reversed the decision.35 However, the
Supreme Court reversed the Circuit Court's finding and reinstated the
FCC ruling by a vote of five to four. In the majority decision,
Justice John Paul Stevens found that the FCC had the power to regulate
the broadcast of obscene, indecent, or profane language.36 A
prohibition against censorship in Section 326 of the Communication Act
prevented the Commission from editing material in advance of
broadcasts, but did not forbid the FCC from reviewing the content of
completed broadcasts.37

Stevens determined that the rule against the broadcast of offensive
language covered more than just the obscene; it also concerned indecent
language. The Court described indecency as speech that is "patently
offensive as measured by contemporary community standards for the
broadcast medium."38 Both content and context were necessary to
determine whether material was obscene, and in Carlin's case the
language used would be classified as "worthless speech" under the
dichotomy established in Chaplinsky v. New Hampshire (315 U.S. 568,
1942) which distinguished between speech that was worthwhile as a step
to truth and speech that was of little value to that goal.39 The
"worthless" category included the lewd, the obscene, and the profane,
and apparently the Court felt that Carlin's words would fall under one
of these categories - most likely the profane. An exact definition of
"profanity" is difficult to determine from the case record, for most of
the challenged programs have been accused of violating either the
"indecent" or the "obscene" provisions of 18 U.S.C. 1464. Profane
language would seem to encompass primarily expletives such as "shit" or
"fuck."

The Court emphasized that this decision was a narrow holding, tailored
specifically to the facts of the case. Carlin's words could be
protected in other contexts.40 However, the broadcast media is
uniquely pervasive and uniquely accessible to children. The audience
constantly tunes in and out and may not hear a prior warning that
offensive language will be aired. Switching off the receiver is not a
remedy because the damage has already been done.41 The composition of
the audience during the time of day that the program was aired was a
factor in this decision; children may have been present (as was the
original complainant's son) during the afternoon hours of the
broadcast. The Court therefore reinstated the FCC's warning.

In the dissenting opinion, Justice William Brennan criticized the
majority's contention that the radio was an intrusive medium. He noted
that individuals voluntarily own and use radios, and may easily turn
them off if they are offended by broadcast material.42 The
Constitution protects the rights of both the sender and receiver of
communications that many, including the FCC, may find offensive, and
this ruling denies the rights of listeners who wish to hear such
broadcasts.43

Brennan also challenged the child-protection rationale of the majority
decision. He recognized that children may be sheltered from offensive
language by "variable obscenity" standards which assess prurient appeal
with reference to the sexual interests of minors. However, these
standards are only applicable when the material is significantly
erotic, which Carlin's material wasn't.44 By censoring such language,
the FCC may well reduce what is acceptable for adults to what is
acceptable for children.45 This portion of Brennan's analysis may
correctly explain variable obscenity laws, but it does not address the
fact that the words were considered indecent, not obscene, and could
therefore be construed to violate 18 U.S.C. 1464 regardless of whether
or not minors' interests were at stake.

Brennan also attacked the majority's assertions that Carlin could have
used alternative wording, and that Carlin fans could gain access to his
material through media other than the radio, by purchasing his records
or attending his performances. Brennan countered the first argument
by noting that language has a dual communicative function; a speaker's
choice of words cannot be divorced from his ideas.46 This concept,
originally stated in Cohen, recalls the WUHY-FM case, in which the FCC
incorrectly assumed that Garcia could have used less objectionable
language without altering his message. Brennan condemned the majority
for being seemingly unable to realize that not everyone shared their
"fragile sensibilities" and "acute ethnocentric myopia."47

These three cases were all decided by the FCC on April 29, 1987, and a
Public Notice concerning issues common to all three was issued that
same day. In these proceedings, the FCC developed new standards for
the enforcement of indecency and warned the above stations that their
broadcasts would violate these new standards.

In the first case, yet another concerning the Pacifica Foundation, the
FCC received a complaint about a program called I Am Are You? that
featured excerpts from the play The Jerker. These excerpts,
broadcast after 10 p.m. on August 31, 1986, contained explicit passages
describing sexual and excretory functions. The show was preceded by a
warning that the content may be objectionable to some listeners. While
not finding the station in violation of law under current FCC
standards, the Commission took the opportunity to set forth new
policies concerning the definition of indecency and the appropriate
time to broadcast indecent material.

The FCC decided that it was neither necessary nor practical to limit
the application of the ruling established in FCC v. Pacifica to solely
cases involving the deliberate, repeated usage of Carlin's "seven dirty
words." Any speech describing or depicting sexual or excretory
functions should be examined in context to determine whether it is
"patently offensive under contemporary community standards applicable
to the broadcast medium."48 Such standards may differ for broadcast
media due to the easier accessibility of broadcast material as compared
to printed material. Broadcasting is especially accessible to
children, and evidence indicates that there is a reasonable risk that
children may still be in the listening audience after 10 p.m.
Therefore, the prior standard that allowed indecent material to be
broadcast after 10 p.m. should no longer be used.49

The Commission determined that the material broadcast on KPFK-FM was
patently offensive, and therefore indecent, regardless of the context.
The station had argued that the explicit passages describing homosexual
activity were part of a play about AIDS, but the FCC insisted that this
material was still patently offensive by contemporary community
standards.50 The Commission also felt that the broadcast may be
criminally obscene under the Miller test, and therefore forwarded the
complaint to the Department of Justice for consideration. However, the
FCC only issued a warning to all broadcast licensees that such material
would be actionable in the future even if it were broadcast at 10
p.m.51

The second case concerned the July, 1986 broadcast of a song entitled
Makin' Bacon, which contained sexually suggestive lyrics. Although
the words themselves were not profane or obscene for the most part,
"dick" being the only word that could be readily classified as indecent
(and this term was used only once), the FCC found that the innuendo was
"rendered explicit by surrounding explicit references" concerning
sexual organs and activities, and was thus patently offensive by
"contemporary community standards for the broadcast medium."52 The
Commission repeated its stipulations that indecency must be determined
by context and that it must be relegated to a time when children are
not likely to be in the audience.53 The station was given the same
warning as Pacifica.

The third case involved a morning talk show by WYSP-FM radio
personality Howard Stern. Broadcasts of this program during the fall
of 1986 were found to be replete with references to sexual and
excretory matters, made "in a pandering and titillating fashion."54
Although much of the material was innuendo and double entendre, the
surrounding references were deemed to render the material explicit. The
context of the program only aggravated the patent offensiveness since
the show was geared toward titillation. It was also broadcast in the
morning, a time of day where there was a reasonable risk that children
were in the audience. The station therefore received the same warning
as Pacifica and the University of California Regents.

On the same day as these three cases were decided, the FCC issued a
Public Notice of "New Indecency Enforcement Standards to be Applied to
All Broadcast and Amateur Radio Licensees."55 This Notice announced
that the Commission would continue to use the definition of indecency
that was upheld in FCC v. Pacifica: "language or material that depicts
or describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory
activities or organs." However, the application of this standard would
not be limited to cases involving the repeated use of the expletives
used by Carlin. Additionally, material broadcast after 10 p.m. would
no longer be automatically insulated from action under 18 U.S.C. 1464.
Material would be channeled to a time when there was not a reasonable
risk that children would be in the audience. The FCC considered this
channeling to be a reasonable time, place and manner restriction which
was consistent with First Amendment rulings concerning printed media.56

A group of petitioners, representing commercial and public broadcasting
networks and associations, program suppliers, and public interest
groups,57 asked the FCC to clarify and reconsider its position stated
in the Public Notice. The Commission replied in December, 1987, with a
Reconsideration Order, which clarified and expanded upon the new
regulations. They stated that the determination of whether or not
material was patently offensive must be made on a case-by-case basis.
This same method was used by the courts to assess obscenity, so the
case-by-case determination was therefore not unconstitutionally
vague.58

The FCC differed sharply from the courts, however, in their other
approaches to classifying indecent material. They stated that merit is
only one of several variables to be considered, and that a program that
has serious literary, artisitic, political, or scientific value may
still be patently offensive and thus found indecent under 18 U.S.C.
1464. This statement contrasts with the SLAPS test for obscenity
introduced in Miller. Also, the Commission determined that
"contemporary community standards" were not based on local standards,
but by the broader standard of the "average broadcast viewer or
listener."59 This standard also differs from Miller, which considered
community standards to be determined by the state or local area. The
Reconsideration Order also established midnight as the new time after
which indecent, "but non-obscene," programming could be broadcast
without a reasonable risk of exposure to children.60

The petitioners who questioned the Public Notice were somewhat less
than satisfied with the FCC's statement in the Reconsideration Order,
so they took their grievances to court. The D.C. Circuit Court of
Appeals decided that the FCC's definition of indecent broadcast
material was not constitutionally overbroad, but also determined that
the Commission did not present sufficient evidence to warrant
channelling such material to after midnight.

The D.C. Court noted that the FCC's generic definition of indecency,
requiring judgment on a case-by-case basis, was virtually the same
definition as the one articulated by the Supreme Court in FCC v.
Pacifica. The D.C. Court inferred from that decision that the Supreme
Court did not consider "indecency" to be an overly vague term, as the
petitioners in ACT v. FCC had challenged. The D.C. Court also agreed
with the FCC's statement that serious merit alone did not necessarily
immunize indecent material from channeling regulations.61

The D.C. Court recognized the necessity of channeling indecent material
to protect children, but ruled that the Commission did not present
enough evidence to warrant the new midnight time restriction.62 The
Court also disagreed with the FCC's assertion that channeling was a
valid time, place, and manner regulation, for the Court observed that
such regulations must be content-neutral. Channeling of indecent
material was clearly a content-based regulation. Such regulations may
be sustained, however, if there is a compelling government interest and
the regulations are carefully tailored. The Court ruled that the
government's interest in safeguarding the well-being of minors was
sufficiently compelling to allow channeling, but a reasonable "safe
harbor" rule must be adopted.63

In light of these considerations, the D.C. Court vacated and remanded
the decisions in Pacifica and Regents of the University of California
for reconsideration. The decision in Infinity was affirmed due to the
fact that Stern's talk show was broadcast during the morning hours,
when there was a reasonable risk, even under the old indecency
standard, that children would be in the audience.

Before the FCC was able to determine anew what a reasonable "safe
harbor" would be, Congress did the work for them. On October 1, 1988,
President Reagan signed a law which contained appropriations for the
Commission for the fiscal year 1989. The legislation contained the
following rider:

By Jan. 31, 1989, the Federal Communications Commission shall
promulgate regulations in accordance with Section 1464, Title
18, United States Code, to enforce the provisions of such section on
a 24 hour per day basis.64

This amendment to the appropriations bill was sponsored by Senator
Jesse Helms, who insisted that 18 U.S.C. 1464 did not specify a time
that was appropriate for indecency; it banned indecent material
outright. He stated: "This filth, obviously... has no business being
broadcast on the public airwaves, let alone being sanctioned by the FCC
between midnight and 6 a.m... Garbage is garbage, no matter what the
time of day may be."65

Given this directive, the FCC had no choice but to enforce the
twenty-four hour ban mandated by Congress.

In June of 1989 the Supreme Court decided a case which, while not
specifically related to the broadcasting of indecent material,
contained holdings that opened the way for the FCC to develop a record
determining the constitutionality of the twenty-four hour ban. This
decision affirmed a District Court ruling which held that an outright
ban on indecent interstate commercial telephone messages was
unconstitutional, although obscene messages may be prohibited. The
decision also held that the government may regulate indecent speech if
the regulation promotes a compelling government interest and is
narrowly tailored to serve that interest.66

In this case, Sable Communications challenged a Congressional amendment
to the Communications Act that prohibited indecent as well as obscene
messages directed to any person, regardless of age.67 The Court found
that there was "no constitutional barrier to the ban on obscene
dial-a-porn recordings," because obscene speech is not protected by the
First Amendment.68 However, the Court also noted that "Sexual
expression which is indecent but not obscene is protected by the First
Amendment." Such material could still be regulated, however, "in order
to promote a compelling interest if it chooses the least restrictive
means to further the articulated interest." The interest of protecting
the well-being of minors was found to be sufficiently compelling, if
the regulations were narrowly tailored to meet that end. The Court
determined that the amendment in question was not sufficiently narrowly
drawn to serve that purpose, and it therefore violated the First
Amendment.69

Based on the holdings in Sable, the D.C. Circuit Court issued a stay on
the twenty-four hour obscenity ban on September 13, 1989. The D.C.
Court's remand order directed the FCC to conduct a "full and fair
hearing" on the constitutionality of the ban. The FCC responded in
November of 1989 by issuing a Notice of Inquiry soliciting public
comment on the issue.70 The Notice presented statistics on such
matters as the number of children present in listening audiences and
the number of radio and television sets in American households, and
invited further evidence supporting or refuting these findings.

The FCC received over 92,500 formal and informal responses to the
Notice. Nearly 88,000 supported a twenty-four hour prohibition.71
After considering these responses, the Commission decided that the
twenty-four hour ban was constitutional according to the standard
established in Sable. They cited data showing that there was a
reasonable risk that children were in the audience at all hours of the
day and night, and judged parental control to be severely limited by
the pervasiveness of the broadcast media, the lack of radio
signal-blocking technology, and the virtual impossibility of monitoring
program viewing on a round-the-clock basis. Therefore, the Commission
concluded that only a twenty-four hour ban would effectively carry out
the government's interest in shielding minors from indecent material.

When citing statistics showing that a significant number of children
are present in listening audiences at all times, the FCC never defined
"significant." For example, they stated that an average of nearly
three-quarters of a million children listen to the radio between
midnight and 6 a.m., with an average number of 716,000 children ages
12-17 in the listening audience during any quarter-hour.72 (For the
purposes of broadcast indecency, the FCC defined children as persons
aged 17 and under.) The Commission did not present these findings as
percentages of the general population, however. Respondent KDVS noted
this oversight, and determined that the percentage of 12 to 17-year
olds in the audience after midnight is 3.5%, or only 0.35% of the
entire population.73 The FCC still maintained that this figure,
translated as 716,000 children, was significant enough to constitute a
reasonable risk. No cut-off quotas were suggested to support this
finding; the Commission apparently assumed that six-digit numbers would
speak for themselves.

While insisting that children could potentially be in the radio
audience at any time, the FCC did recognize that they may not be in the
audience of a given market at a given time of day. Therefore, the
Commission allowed alleged purveyors of indecency to present evidence
showing that children were not in the audience during the time of the
challenged broadcast. This evidence had to be shown for the entire
market, not just the particular station, due to the fact that listeners
switch stations frequently.74 This consolation assumes broadcasters
are guilty until proven innocent, as it puts the burden of proof on the
licensee to show that there is minimal risk that children are not only
listening to the particular station, but in the market area audience at
all.

Nevertheless, the Commission did not feel that this was an "unduly
burdensome" requirement, for stations are required to insure the
well-being of its young listeners. They pointed to the history of
Congressional regulations of indecency to show that Congress has found
that exposure to indecent material can harm children. They also noted
that the increasing narrowness of the definition of obscenity has
produced a corresponding expansion of what can be labelled "indecent"
and therefore "protected speech." This broad range of
sexually-oriented material that could be broadcast heightened the
Commission's sense of duty to protect children.75

The FCC found that the unique pervasiveness of the media presented a
strong case for enforcement, even independent of the child-protection
rationale. The large number of radio and television sets in each
household makes parental monitoring very difficult,76 and technologies
such as lock-boxes are not yet available for radio.77 Instituting
precautions such as rating or warning systems would not help because
listeners frequently turn the dial and may miss the message.78
Moreover, there is an interest in protecting the privacy of the home
from being invaded by unwelcome broadcasts, and this interest is
compelling as an alternative to the child-protection basis for
upholding the twenty-four hour ban.79 The Commission did not make a
strong case for this last point, however, particularly as they relied
on prior dissenting opinions to form a significant part of the
argument. The child-protection rationale was much more extensively
developed in this report than the privacy rationale.

Finally, the FCC found that a twenty-four hour ban did not infringe
upon the rights of adult listeners and viewers because these listeners
have access to alternative sources of indecent material, such as cable
television, movies, and video- and audiocassettes.80 This analysis
ignored the Supreme Court finding that free speech may not be abridged
in one place with the excuse that it may be exercised elsewhere.81
Furthermore, the Commission ignored the financial costs associated with
cable, movies and the like. Nonetheless, the FCC felt that the
compelling interest in protecting children outweighed the rights of
adult audience members.82

Following the announcement of these new standards, several stations
were challenged and fined. In December of 1990, the Howard Stern
Show again came under attack. The FCC found that material on the
December 16, 1988 broadcast contained "explicit verbal references to
sexual activities that were rude and vulgar, and that, when taken in
context, were made in a pandering and titillating fashion." This
program was also broadcast between 6 a.m. and 10 a.m., a time when
there was a reasonable risk that children would be in the audience -
therefore, this case would have been actionable under older enforcement
standards. The program was labelled patently offensive and indecent,
and each of the stations that broadcast it was fined $2000.83

Another $2000 fine was issued to a station which broadcast a song
called Penis Envy at 6 a.m. on October 27, 1988, during the Neil
Rogers show. This song "contained lewd references to the male genitals
and to activities involving male genitals, all graphically portrayed in
a patently offensive manner."84 Because this song was broadcast at 6
a.m., it again may have been actionable under earlier indecency
standards. Apparently the FCC has had trouble finding complaints about
programming aired during the suspect midnight to 6 a.m. time slot,
perhaps because fewer adults are awake then; the Commission determined
that more children than adults are in the listening audience during
those hours.85 One may wonder how many of the 88,000 respondents
favoring a twenty-four hour ban have actually listened to the radio
after midnight.

In the most recent challenge to FCC authority, the D.C. Circuit Court
decided that a total ban on the broadcast of indecent material was
unlawful. The D.C. Court recognized that Congress mandated the
twenty-four hour ban, but noted that "it is ultimately the judiciary's
task, particularly in the First Amendment context, to decide whether
Congress has violated the Constitution." The Court decided that the
elimination of the "safe harbor" period was not sufficiently carefully
tailored to the government's interest in safeguarding minors.86

Considering the lengthy, conflict-ridden history of this subject, it is
doubtful that the D.C. Court's opinion will be the last word on the
issue. Congress may pass yet another set of restrictions; Senator
Helms is still active in Congress. However, new technologies may allow
greater parental control of radio listening. In the end, it appears
that only another Supreme Court decision will provide a definitive
answer, if not satisfactory solution, to the problem of the regulation
of broadcast indecency.